Some Friendly Advice from One Solicitor to Another

When I first came back to practice in West Cork I was as green as a particularly unripe banana. And I had chosen to go into practice with my mother in a business she had started and worked in completely on her own. We were big fat nobodies in the legal world. And as is often the way in small ponds, big fish tend to look down on the little ones with derision. Particularly, city ones when it comes to country bumpkins.

But we had a good case, a REALLY good case. It was my first medical negligence case. Medical negligence cases are very complicated. Proving that one thing caused another and that that ultimately led to what is complained of can be tortuously difficult, involving a lot of investigation, research and expert evidence.

One of the features of medical negligence is that multiple parties may be responsible. In this case, there had been a medical procedure. The patient had originally gone to one doctor. In fact another doctor had performed the procedure. The procedure had been performed in a hospital.

So when you go to sue in a case like this you must sue the first doctor, this is the person with whom the contract to do the job has been made. You must sue the second doctor, this is the person who actually did the job. And you must sue the hospital as the organisation responsible for overseeing how all of this was done.

But before you rush off suing anybody, when you have multiple parties in a case like this, you must write to each and say: “look, this is clearly wrong and my client has suffered loss because of your fault, admit it now and there’ll be no need for anybody to sue anybody else. But if you don’t admit it I’ll have to sue you and these other people and if these other people turn out not to have been at fault, we’ll have to hold you responsible for their costs of the whole thing as well as ours.” Or words to that effect…

That’s a really important letter to send. And I sent it; to each of them. A little while later I got a phone call. From a very senior and established solicitor acting for the hospital. We didn’t know each other from Adam and to him I would have been a mere pipsqueak. But he was all avuncular and charming and he wanted to offer me a bit of friendly advice. He gave me a tip, he said if you want to get a quick settlement name the first doctor first in the proceedings.

You see the letter is sent before the proceedings are issued. When you issue the proceedings you name the parties in no particular order but that order is then fixed as the title of the proceedings for their duration. And a matter of practical fact, if you have proceedings entitled Flor McCarthy v Boy Dewy, Totally Chetham and Any Howe it will appear in every court list as “McCarthy v Dewy and others”. The first named defendant is the one everyone will hear about. My friendly colleague was suggesting if I put the doctor in the limelight, he or she will be particularly anxious to keep their name out of the papers and will use whatever influence they may have to get the case settled as soon as possible.

Such helpful advice, from such a senior practitioner; a real inside tip. So I rang the senior counsel I had at the time, a very experienced and supremely competent man (also a real gentleman). He said Florence, he always called me Florence (still does), when I was a newly qualified barrister a then senior counsel who later became a judge took him aside and said “you are very able and very well qualified, you will be much sought after in this business and many people will come to you looking for you to be their advocate. But never compromise on your principles and never let the prospect of gain cloud your judgment.”

He didn’t really need to say anymore. The helpful advice that I was getting from my senior colleague had one salient feature. He was acting for the hospital. He did not want his client’s name appearing all over the court lists and in the media as a result. So he was trying to get me to name one of the other defendants first to deflect attention away from his client.

It was one piece of advice that I declined.

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Post byFlor McCarthy

Flor specialises in the area of commercial law and the area of probate, trusts and estates. His commercial practice consists mainly of commercial litigation, commercial property and SME commercial advisory work. In the area of probate, trust and estates, Flor deals with wills and estate planning for clients; complex probate and administration…Read More